ACE, Other Groups Comment on Education Department Title IX Draft Rule
September 12, 2022

Letter thanks the department for its efforts to provide greater flexibility and urges additional clarity and flexibility to help colleges and universities fulfill the promise of Title IX

ACE and nearly 50 other associations submitted comments to the Department of Education (ED) today on its proposed revisions to the regulations implementing Title IX, the landmark civil rights law that prohibits sex-based discrimination at colleges and universities that receive funding from the federal government.

Over the past decade, Title IX guidance and regulations have changed significantly, presenting a number of challenges for campuses in their efforts to address sex-based discrimination and particularly sexual harassment and sexual assault. The groups noted that this latest effort presents an “opportunity to stop the churn of perpetually changing rules," which has been costly and confusing for colleges and universities and students.

The proposed rule released in July represents a significant broadening of the scope of the current Title IX regulations. It provides new, detailed requirements regarding campus efforts to root out and address all forms of sex-based discrimination, including discrimination on the basis of gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy. In this respect, the proposed rule is different from recent regulatory efforts, which have focused on sexual harassment and particularly sexual assault. 

The current regulations, revised in 2020 during the Trump administration, have been problematic and in many cases have turned campus disciplinary processes into adversarial court-like tribunals. Under the current rules, campuses are required to hold a live hearing with cross examination by the party’s advisor of choice, often an outside attorney.

The proposed rule provides greater flexibility for campuses by removing the mandate for a live hearing with cross examination. It also allows campuses to use an informal resolution process to resolve complaints of sex-based harassment between students, when the parties voluntarily choose this option and the institution determines it is appropriate to offer it. 

The proposed rule reaffirms existing requirements that campus policies and procedures must provide equitable treatment of all parties involved, and must prohibit conflict of interest or bias among Title IX coordinators, investigators, decisionmakers and informal resolution facilitators. This is helpful to college and university efforts to ensure a fair process.

Recommended Changes

While the groups were pleased to see several changes providing greater flexibility for institutions, they outline a number of areas where additional clarity or flexibility would be helpful.  Among the recommendations:

  • The proposed rule creates an expansive and complicated set of reporting responsibilities touching virtually every employee on campus. Colleges and universities strongly support efforts to encourage students and employees to report all sex-based discrimination to the institution. However, the groups urge ED to simplify this portion of the proposed rule to provide better clarity and help ensure that students, particularly survivors of sex-based harassment, can determine in advance whether confiding in a particular employee will trigger a notification to their institution.
  • The proposed rule expands the role and responsibilities of Title IX Coordinators by requiring them to undertake specific compliance actions. By requiring the Title IX Coordinator to be responsible for—versus coordinating—certain compliance functions, the proposed rule would conflict with administrative structures on many campuses. The groups recommend ED revise the proposed rule to ensure that Title IX Coordinators remain responsible for coordinating their institution's overall Title IX compliance efforts while allowing institutions flexibility to determine the administrative structure that works best for their campus.
  • The proposed rule contains detailed requirements for institutional grievance procedures involving complaints of sex-based harassment against an employee. These procedural requirements are likely to be inconsistent with the types of procedures that would otherwise be applied to sexual misconduct complaints against employees under, for example, Title VII, applicable state law, collective bargaining agreements, faculty/staff handbooks, and employment at-will policies. The groups recommend that ED exempt sex-based harassment involving employee-respondents from these specific grievance procedure requirements to allow institutions greater flexibility to address these complaints in a manner consistent with other applicable laws and institutional policies.

The Release of the Final Rule

The public comment period on the draft rules has drawn more than 200,000 submissions, which ED must now review. It also is expected that parts of the final regulation will be challenged in court. Given this, it unclear when the new rule might go into effect. 

Providing significant time for implementation is crucial so that campuses may consult with campus stakeholders especially students, train faculty, administrators and staff about their new responsibilities, and take into account applicable state and federal law, court decisions, governing board policies, and institutional values that will shape how the rule is ultimately implemented on their campuses.

The groups request that ED follow the timing process outlined in the Higher Education Act Master Calendar, which says institutions must have at least eight months to prepare for the adoption of new federal regulations and ensures that new regulations take effect at the start of an academic year.